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NO.

09-CI-00757

JEFFERSON CIRCUIT COURT DIVISION EIGHT JUDGE MCKAY CHAUVIN PLAINTIFF

LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF DECEMBER 1, 2006, GSAMP TRUST 2006-HE8 v. JULIA SHULTZ ******************* NOTICE Notice: David Boyce Bryan Schaefer Nielson & Sherry, PSC 639 Washington Ave. Newport, KY 41071 NOTICE-MOTION-ORDER

DEFENDANT

PLEASE TAKE NOTICE that the motion will be will be heard in the above captioned court on Monday, March 1, 2010 at 1:15 A.M. or as soon thereafter as it may be heard. MOTION TO SET ASIDE VOID JUDGMENT Comes now the Defendant, Julia Shultz, by and through counsel and pursuant to CR 60.02(e) moves the Court to set aside the void judgment entered on December 14, 2009. In support of this motion, Defendant states as follows: A Plaintiff must have standing to pursue foreclosure. Standing requires that a Plaintiff have a substantial interest1 in the loan underlying the suit. Without standing, the

Standing to bring an action requires a personal interest, often referred to as a substantial interest in the subject matter of the litigation Porter v. Shelbyville Cemetary Co. (Ky.App. 2009).

Court lacks jurisdiction to decide the merits of the case.2 Any judgment entered where the Court lacks jurisdiction is void.3 In this case, Plaintiff trustee does not have a substantial interest in the loan, the court lacks jurisdiction to enter judgment against Defendant, and such entry is void. CR 60.02 permits the Court to relieve a partyfrom its final judgment [if] (e) the judgment is void. Such relief is appropriate here as Plaintiff has no interest in the promissory Note underlying this action, suffers no harm from an alleged default, and possesses no right to enjoy a six-figure payday following the sale of Defendants home in foreclosure. On January 26, 2009, Plaintiff chose to file suit in this Court to pursue a foreclosure action against Ms. Shultz. Plaintiff, LaSalle Bank National Association, is the trustee for a securitized trust, GSAMP Trust 2006-HE8, that contains, presumably, thousands of mortgage loans. In response to Defendants Request for Production of Documents, Plaintiff provided a copy of a promissory Note made by Defendant Bruce Shultz in favor of Wilmington Finance, Inc.4 Plaintiff also provided Defendant a copy of an Allonge to the Note that negotiates the Note from Wilmington Finance, Inc. to Bank of America, National Association as successor by merger to LaSalle Bank National Association, as trustee under the Pooling and Servicing Agreement dated as of December

In order to invoke the jurisdiction of the court to enforce a claim, the plaintiffs must show that they have standing to do so. Porter v. Shelbyville Cemetary Co. (Ky. App. 2009).
3

Slone v. Stone, 249 S.W.2d 42 (Ky. 1952). The Kentucky Supreme Court, in deciding whether to honor a custody dispute resolved in West Virginia, looked to the West Virigina courts jurisdiction over the subject matter and parties to the suit. In affirming the judgment, the Court noted, We do not find the lack of jurisdiction which would void the judgment.
4

Attached as Exhibit A.

1, 2006, GSAMP Trust 2006-HE6.5 These documents demonstrate that Plaintiff, as trustee for a securitized trust, has no standing because the trust never acquired any interest in the promissory Note. Plaintiff is the trustee of a trust that was created by a Pooling and Servicing Agreement (PSA).6 This PSA outlines what party is conveying assets into the trust pool, who will serve as the trustee of the trust, who will service the home loans in the trust, and the duties of each of these parties. It also outlines the dates by which certain events must occur. For example, the loan closes on December 27, 2006.7 After that date, the trustee is forbidden from accepting assets to the trust pool except in the limited instance of a Qualified Substitute Mortgage Loan. Furthermore, the PSA outlines the mechanism by which loans enter the trust pool. Section 2.01 of the PSA, entitled Conveyance of Mortgage Loans, states The Depositor, concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund. The PSA defines Depositor as GS Mortgage Securities Corp. The extensive PSA identifies no other party as having the authority to convey assets into the trust. The Depositor, GS Mortgage Securities Corp., is the only party that can convey assets into the trust under the Plaintiffs Pooling and Servicing Agreement.
5 6

Attached as Exhibit B. This Pooling and Servicing Agreement is available online at http://www.sec.gov/Archives/edgar/data/1383499/000091412107000189/gs6577222-ex4.txt 7 Closing Date and Start-up Date are defined in the Pooling and Servicing Agreement, Article I Definitions and Start-up Date, gains additional definition in 2.05.

Plaintiffs Attempted Transfer of Defendants Loan into the Trust is Void under Applicable Law Plaintiffs status as real party in interest with standing to pursue foreclosure depends on Plaintiff having a substantial interest in the suit. Plaintiffs own documents demonstrate that not only does Plaintiff trustee not have a substantial interest in the promissory Note underlying this suit, it in fact has no interest. Plaintiff has no interest because the Defendants loan is not a part of the trust for which it is trustee. Plaintiffs own Note and Allonge demonstrate that Wilmington Finance, Inc. negotiated ownership of this note directly to the Plaintiff trustee. Plaintiffs documents reveal that the Depositor, GS Mortgage Securities Corp., never had an interest in Defendants loan that it could convey into the Plaintiff trustee. With no interest in the loan to convey, the Depositors conveyance of all right, title, and interest under the PSA conveyed precisely no interest into the trust. Plaintiff trustee has no standing to pursue this claim because the only party that conveyed assets into the trust never had an interest in Defendants promissory Note to convey. Furthermore, the Allonge to Note raises additional questions about the timing of the purported transfer. The Allonge purports to negotiate the Note from the originator, Wilmington Financial, Inc. to Bank of America, National Association as successor by merger to LaSalle Bank National Association. (Emphasis added.) Bank of America did not acquire LaSalle Bank until October 1, 2007,8 almost a year after the date the trust closed, December 27, 2006. The inclusion of Bank of America on the Allonge indicates that the Allonge (and thus the negotiation) occurred well after the trust closed. Again,

http://en.wikipedia.org/wiki/LaSalle_Bank

acquisition of additional assets after the start-up date is strictly prohibited by the Plaintiffs Pooling and Servicing Agreement. The conveyance described by Defendants documents occurred at least nine months after the trusts start-up date and between parties that were not authorized to convey assets under the Pooling and Servicing Agreement. New York law governs the trust and the parties according to the PSA.9 Any transfer of a loan into the trust in contravention of the trust agreement is void under New York law. Both the statutory and case law in New York is clear: If the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance, or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void. McKinneys Consolidated Law of New York Annotated, estates Powers and Trust Laws 7-2.4 (2003); see Allison & Ver Valen Co. v. McNee, 9 N.Y.S.2d 708 (N.Y. Sur. 1939). The conveyance of this loan was from an unauthorized party and at an unauthorized time. Plaintiffs attempted acceptance of a conveyance in contravention of the Pooling and Servicing Agreement is void under New York law. Plaintiff trustee has no interest in the subject mortgage loan, suffers no damage by any alleged default, and has no right to receive the proceeds flowing from a foreclosure sale of Defendants home. Plaintiffs own documents, the Pooling and Servicing Agreement, and applicable law

Section 12.03 states, THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. The document governing the Plaintiff trustee dictates that the trustees actions must be judged by New York law. That is, the effect of an attempted transfer of a mortgage loan into the trust pool after the startup date (in this case December 27, 2006) must be judged by New York law.

demonstrate that Plaintiff, in fact, has no interest in the underlying note and has no standing to bring this foreclosure suit. The Plaintiff having no standing, the Court has no jurisdiction, and its judgment is void. The Courts void judgment must be set aside and Plaintiffs Complaint dismissed with prejudice. Respectfully submitted,

______________________________ Ben Carter Legal Aid Society 416 West Muhammad Ali Blvd. Suite 300 Louisville, KY 40202 (502) 614-3134 Fax: (502) 614-3734 bcarter@laslou.org

CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the Reply was mailed, postage prepaid to the following parties this 13rd day of February, 2010: Bryan Schaefer David Boyce Nielson & Sherry 639 Washington Ave. Newport, KY 41071

___________________________ Ben Carter

NO. 09-CI-00757

JEFFERSON CIRCUIT COURT DIVISION EIGHT JUDGE MCKAY CHAUVIN PLAINTIFF

LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT DATED AS OF DECEMBER 1, 2006, GSAMP TRUST 2006-HE8 v. JULIA SHULTZ ORDER

DEFENDANT

WHEREAS, this matter having come before the Court upon motion of counsel for Defendant to vacate its December 14, 2009 entry of judgment in favor of the Plaintiff and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED that the Courts December 14, 2009 Order granting judgment in favor of the Plaintiff is SET ASIDE as void for lack of jurisdiction. Plaintiffs Complaint is DISMISSED WITH PREJUDICE.

_____________________________ DATE

___________________________________ JUDGE MCCAY CHAUVIN JEFFERSON CIRCUIT COURT DIVISION EIGHT

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